Undermining copyright would threaten creativity

by Kim Williams Chair, The Copyright Agency

If the Productivity Commission’s final report into intellectual property arrangements recommends a shakeup of copyright law in this country on a massive, unjustified, poorly researched and unprecedented scale, it won’t represent reform, it will be a vote for remote and disconnected economic ideology of unusually destructive force.

Taking the draft report as an indicator it will undo not just relatively recently-gained protections for rights holders, but protections based on international conventions that go back 130 years. The PC advocates that copyright needs to be radically rebalanced with a vast disparity between the current term of international copyright protection and that which it prefers. Further, it advances use principles that can only be described as unsound and highly opinionated.

The Commission has not lived up to its often noble history in this report. It treats copyright as an exclusive economic proposition rather than also as a quite fundamental human right. That evolution is seen from the Statute of Anne in 1710 through to Article 27 of the Universal Declaration of Human Rights.

I cannot think of another recent report that so seriously misses the main drivers of its area of inquiry – namely intellectual property and the production of creative works. The incentives and innovation central to producing new work, and associated ownership and use protections, are central issues to the review.

Surprisingly and in a rather vainglorious way, the report treats Australian creative content and its production with a disdain bordering on contempt - which is concerning for any economic statement, let alone one from an independent central government agency.

The summary and communication materials released by the Commission were also unprecedented – slanted against creators and misrepresenting copyright and its Australian operation.

The PC makes draft recommendations which would have such a deeply detrimental impact on the ability of film and television makers, writers, artists and journalists to tell Australian stories and make a living doing so, as to be worthy of only one response – firm rejection.

In the creative landscape, the bedrock of producing things such as books, film and television and allied production is intellectual property and copyright – the Copyright Act provides the framework for ensuring returns from creative production and the investment and innovation which drives it.

Copyright has always been important. That’s why it’s been around for centuries. But it’s never been as central to our economic future as now.

In other, less momentous times, copyright was something that was probably of most interest to lawyers. You know the sort of thing. A tussle over who first wrote that guitar riff to ‘Stairway’. Important to those involved, most certainly; but not an issue that was front and centre of debate, despite its importance.

But not now.

In the digital world there’s so much more at stake, for everyone. Protecting copyright is absolutely central to the very things that are driving our future prosperity: creativity, invention and productivity.

We are really only just embarking on this digital journey. None of us really know where it will take us. Given the pace of change in the digital realm especially, it’s likely that many of the innovations that we’ll be talking about in 2026 are still unknown.

Without strong copyright laws those future innovations won’t take place securely here, in Australia.

It’s a big economic issue, but it’s about a lot more than economics. It has massive implications for our society also. Because as you all know creativity isn’t just an economic need; it’s a human need.

In a world in which as much as 40 per cent on some estimates, of existing jobs – even knowledge jobs – will be replaced by technology in the coming decades, we have a unique chance to expand the opportunities for millions of ordinary people to use their time creatively instead of in passive and sometimes personally and socially destructive ways.

We are on the cusp of a time in which culture, art, technology and entertainment will flourish, democratically, as never before.

And yet, there are big risks. There is a more dystopian view where some digital businesses see copyright as an inhibitor to their mode, something to be watered down, to help reduce input costs.

If we allow their view to take root, we shall all still work in a digital economy, but it will be a digital economy of a far different sort. One with far less creativity, far fewer opportunities, far shallower intellectual and artistic depth, and far lower rewards for those who create new work.

A future in which creators are forced to give up creative dreams where they have all the appeal and legal status of daggy second hand goods.

It’s already a tough world for creatives. For example the annual average income of writers is currently estimated at just $13,000 a year. We can’t afford to make it even tougher.

So what is the Productivity Commission proposing?

In an unusually slanted, lopsided report, there are two major inevitably damaging changes for copyright with many other significant proposals on IP generally and with a raft of decidedly odd commentary.

The first copyright change is to introduce a U.S.-style ‘fair use’ exception to copyright protection. ‘Fair use’ is an unfair American legal principle which would allow large enterprises to use copyright material for free, which, under Australian law they currently have to pay for.

PwC recently estimated that introducing fair use in Australia could result in a loss of GDP of over $1 billion.

The massive legal uncertainty surrounding the interpretation of ‘fair use’ would create a lawyers’ feast, raise enforcement of copyright costs and potentially make enforcement in a small more financially constrained jurisdiction such as Australia, all but impossible.

This would almost certainly lead to the situation – already prevalent – where copyright infringers would make calculated incursions into copyright-protected material and effectively challenge the ability of rights owners to seek a ‘fair use’ judgement in court. This is a legal definition fraught with judicial disagreement. How many artists or small publishing houses can afford to litigate against big players in this way? ‘Fair use’ adds up to an almost non-existent legal protection when Australia already has ‘Fair Dealing’. And it works, enabling excerpts to be used within defined limits.

In America, where ‘fair use’ rules apply, copyright litigation is five times higher than in Britain, which has copyright laws similar to ours. Those laws have recently been confirmed in the UK.

The PwC estimate of the loss of $1 billion would include a massive reduction in Australian produced content. All the available evidence – and there are vast swathes of it - suggests ‘fair use’ is unfair and the wrong way to go.

Not only that, but it would also undermine the effective and fit-for-purpose licencing system that has evolved here in Australia. It is one of the best licensing regimes in the world and enables teachers and students to share and copy from almost every book, magazine, image or journal published in the world for less than the cost of a single book each year.

The second major concept floated in the report was to reduce the period of copyright protection of a work to as little as 15 or 25 years after creation. This was the Commission’s so called ‘preferred position’ and not a recommendation as it blatantly disregards the inconvenience of international treaties which commit Australia to current copyright terms of 70 years after the death of the creator.

It means that any work published as recently as 2001 would be free for any other person to appropriate and commercially exploit it with no benefit to the person who wrote it or sang it or filmed it.

Stasiland – nothing from 2017 onwards for the brilliant Anna Funder. It’s still selling strongly thanks to being on school reading lists. It’s how she makes part of her living. Under this proposal, it could be making someone else a living.

Gallipoli – nothing anymore for David Williamson and Peter Weir.

Want to make a movie of Richard Flanagan’s Narrow Road to the Deep North? It’s yours for free just a short dozen years from now.

A back catalogue of protected work is a creative person’s superannuation. Removing that income stream after just 15 or 25 years is like confiscating the capital growth of their superannuation accounts when they reach the age of 50.

Most would call that a form of theft, wouldn’t they?

Not only is it unfair but it makes it much harder to support and nurture the next generation of stars and Aussie icons - the Jimmy Barnes’s, Peter Sculthorpe’s, Patrick White’s, Miles Franklin’s and Mad Max’s of the future.

Let’s be clear about what underpins the Productivity Commission’s determination to dilute copyright and compromise it with notions of fair use as against already existing provisions of fair dealing. It is not free market thinking. It is an ideology manufactured to benefit the large corporations who stand to gain by squeezing rights holders into the workhouse.

These manufactured arguments will be all too familiar to all. ‘Content should be free.’ ‘Big Content is the new Big Brother. ’Copyright holders are vested interests.’ ‘Copyright holders are freeloaders.’ ‘Copyright is theft.’

And so on – these arguments are often referred to as the Copyleft.

The squeezers have been creating these trendy, upbeat, sometimes even anarchic arguments against copyright protection for ages now. They are setting up groovy campuses and think tanks, funding university programs, hiring lobbyists, impressing on people that it’s all about knowledge and opportunity – when it’s all really about more money for them.

They’ve managed to make the impoverishment of the creative community sound ‘cool’, when it’s the opposite.

You don’t have to be a genius to see that right now economic reform and innovation are in serious trouble. There’s a backlash. Whether it’s the Brexit, or the rise of populists like Donald Trump and Marine Le Pen, or even the result of our own recent federal election, too many people are saying that innovation and economic change are creating too many losers and too few winners.

Undermining copyright will perhaps prove such critics correct.

By stopping so many self-employed creative people from gaining adequately from their work, it will create a potential new source of backlash. By damaging publishing houses it will create a potential new source of unemployment.

If the thousands of young people coming out of our universities each year hoping for a job in the creative sectors of the economy are robbed of any hope of making a living from their talents, how easy do you think the innovation agenda will get? How easy do you think economic reform will get? And then there is the whole array of digital invention and intellectual property attaching to it.

To follow this ill-considered poorly argued report which is so disrespectful of intellectual production, would be a disaster for our nation. It would represent surrender of our creative assets to hostile forces.

If we are to be all that we can be in the digital world, we need to back creativity and invention, as the Prime Minister is determined to do. It’s a task that can’t be achieved by parroting simplistic theories; it’s one that needs a wider and deeper view, informed by reasoned argument and real evidence.

I encourage the Productivity Commission to think again.

If it isn’t able to do this, on behalf of Australia’s creators and those who back them, I urge the Australian Government and the Parliament to ignore the recommendations of the forthcoming Productivity Commission Intellectual Property Arrangements Report because Australia deserves better outcomes.

This is an edited extract of Kim Williams’ speech at the Melbourne Press Club on August 17. For the full speech click here.

Kim Williams, AM has had a long involvement in the arts, entertainment and media industries here and overseas and has held various executive leadership positions since the late 1970s including as chief executive at each of News Corp Australia, FOXTEL, Fox Studios Australia, the Australian Film Commission, Southern Star Entertainment and Musica Viva Australia and also as a senior executive at the ABC.
Mr Williams was the chief executive of FOXTEL for the decade up until November 2011. At FOXTEL he pioneered many of the major digital broadcast innovations in Australia and received the 2012 Lifetime Achievement Award from the Australian Subscription Television Association (ASTRA) for his diverse contributions.
Mr Williams has also held numerous board positions (and chairmanships) in commercial and public life over more than three decades including as chairman of the Australian Film Finance Corporation (which he founded in 1988); chairman of MCN – the subscription television industry’s major advertising sales company; chairman of the Sydney Symphony Orchestra and of Musica Viva Australia; and most recently as the chairman of the Sydney Opera House Trust from 2005 until 2013.
He was appointed as a member in the Order of Australia in June 2006 for his services to the arts and public policy formulation in the film and television industries. In October 2009 he was awarded a doctorate of letters (honoris causa) by Macquarie University for his contribution to the arts and entertainment industry in Australia and internationally. He is a previous recipient of the Richard Pratt Business Arts Leadership Award from the Australian Business Arts Foundation and the Australian Writers Guild’s Dorothy Crawford Award for outstanding contribution to the profession.
Kim Williams is a current board member of numerous commercial bodies and foundations and also serves as a commissioner of the Australian Football League. He undertakes private writing, consultancy, teaching and speaking assignments for diverse clients.
Melbourne University Press published his first non-fiction book Rules of Engagement in 2014.